Ten nations simultaneously ratified the Rome Statute of the International Criminal Court (ICC) on April 11, bringing the total number of ratifications for creation of the new United Nations court to 66 -- six more than required for the international treaty to go into effect. This treaty, concocted by a U.N. meeting in Rome in 1998, is scheduled to "enter into force" on July 1.
Yet the practical meaning of "enter into force" is not immediately clear. All of the ratifying countries, except for populous Nigeria, Germany and the United Kingdom, are lilliputian mice seeking to bell the U.S. cat and its citizens. Even including the three majors, the 66 ratifiers constitute less than one-sixth of the world's population. Nevertheless they presume to sit in judgment over the rest for a long list of "crimes against humanity" and other vague acts such as "aggression."
Critics of the ICC say accession to the jurisdiction of the U.N. court would be a degrading step down in the quality of justice afforded to U.S. citizens. As U.S. experts in international law point out, the ICC exercises the powers of a governing authority but has no mechanism to represent the consent of the governed.
With widespread concern throughout the U.S. Senate that prosecutors of the U.N. court would unfairly target U.S. military personnel deployed around the world, the Clinton administration never had anywhere near the votes in the Senate to ratify this treaty. Nonetheless, Bill Clinton signed the Rome treaty in the waning days of his presidency on Dec. 31, 2000 -- the very last day it was open for signatories. Signing does not mean that a country ultimately is committed, but only that it will seek ratification according to its national process. Clinton had no intention (or ability) to send it to the Senate because it was not in session. He simply dumped it in the lap of incoming President George W. Bush, critics say, hoping to embarrass him.
Political insiders at the White House say Bush will not be sending the treaty to the Senate. In fact, State Department spokesmen talk about "unsigning" the draft document, an unprecedented rebuke to Clinton and to an international community that has overreached itself. In New York City, U.S. Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper tells INSIGHT: "We are to be no part of the ICC, and we are letting the international community know this."
Although the treaty is called the "statute" of the ICC, it is wholly unlike statutory legislation in the U.S. legal system. Here the making of laws requires that a representative legislature pass a bill that stands the test of the Constitution and that there be an executive agency to enforce the law. The ICC fails on all counts, say U.S. diplomats.
The threat to sovereignty is very much at the forefront of Prosper's mind. "We will take steps to protect our interests," he says. "We are determining how best to implement our opposition [to the ICC] and protect our national-security interests. I don't want to prejudice the hand of the president, but we are looking at a range of possibilities." And Ambassador Prosper confirms that "unsigning" the treaty is one possibility.
Though the ICC statute claims to limit jurisdiction over persons to "the most serious crimes of international concern," Prosper observes that there are not "sufficient safeguards in place [to] prevent purely political prosecutions." As an example of the recent climate of politicization, he cites the insistence of some of the court's advocates that the 9/11 terrorists be tried in an international tribunal even for crimes that occurred on U.S. soil.
According to Prosper, the United States has the sovereign authority, the capability and the legal jurisdiction to adjudicate these offenses. Yet, he notes, "even when we put these arguments out, there [were] some who said, `No, …